Shaba v R (Miscellaneous Criminal Application 83 of 2019) [2020] MWHCCrim 24 (5 August 2020)

"==" < Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC E ae Ses ot hor” REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY: CRIMINAL DIVISION Miscellaneous Criminal Application No: 83 of 2019 Deborah Shaba oo -v- The Republic CORAM: HONOURABLE JUSTICE D. A. DEGABRIELE Mr. W. Nkosi Counsel for the State Mr. M. Banda Counsel for the Applicant Mr. L. Chanza Official Interpreter Mrs. J. N. Chirwa Court Reporter DeGabriele, J ORDER ON APPLICATION FOR DISCHARGE 1. Introduction 1.1. This is an application for discharge and release from custody, filed pursuant to section 42(1)(f) section 42(2)(e) of the Constitution of the Republic of Malawi (hereinafter referred to as the “Constitution’); section 161E, F and G as read with section 302A of the Criminal Procedure and Evidence Code (Cap 8:01) of the Laws of Malawi (hereinafter referred to as the CP&EC); and section 118 of the CP&EC. 41.2. The Applicant, who is 27 years old was arrested on 8 January 2018 in connection with the death of an unknown man. She comes from Kwazilase village, Traditional Authority Mzikubola in Mzimba District. The brief facts as presented by the Applicant were that on 8 January 2018, an unknown man insisted on having sex - Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC with her and a fight begun when she refused. The unknown man produced a knife to stab her, but she managed to snatch the same and stab the defence. The unknown man died on the spot. The Applicant is children. She is seeking to be discharged and released fro since her arrest she has not been committed to the High Court unknown man in self married and has two m custody because for trial and he does not know when her trial will commence. The Applicant has been on remand for a period of 24 months at the time of this application. The Applic to her village once released. ant intends to return 4.3. The State, in its affidavit in response confirmed that the Applicant was arrested in January 2018 for the offence of homicide. The State opposes the application for discharge stating that the application relies on laws that h ave to do with bail application. The State further argues that the proper application should have been for bail consideration. However, the State concedes that if the Applicant seeks to be considered for bail, the State would not object to her being granted bail since the pre-trial custody limits have been exceeded. 2. Issues for determination 2.1. The questions this Court has to determine are; 2.1.1. Whether or not the Applicant should be discharged custody; 2.1.2.\f not, whether or not the Court can grant bail in these circ 3. The Law and analysis of the application and released from umstances 3 1. Section 41 of the Constitution guarantees the right to access to justice and legal remedies. The same right is widely acknowledged under the in rights framework, such as the Universal Declaration of Human ternational human Rights (1 948), the International Covenant on Civil and Political Rights (1966), and the Afncan Charter on Human and People's Rights (1986). These conven tions demonstrate that access to justice and human rights protection is linked to the fact that all persons have a right to access courts of law and seek legal remedies against any breach and violations of fundamental rights. Addressing breaches of these fundamental rights must be done by the State, which has an obligation to ensure expeditious and timely disposal of all matters concerning any breach or violation ~ of fundamental rights; and in this case the right to liberty as enshrined in section 2 - Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC 18 of the Constitution. Therefore, when there are undue delays in commencing trial, an accused person is not only entitled to seek bail before a court of law, but can also seek other legal remedies to address violations necessitated by the delays in commencing trial. 3.2. The Applicant herein has been accused of committing a non-specified homicide offence. The law requires that an accused person should be brought to book through a proper trial, and if found guilty, should be convicted and punished in accordance with the law. However, in this case, the Applicant has been deprived of his liberty since the accusation and allegation that he committed a homicide offence was levelled against him. She has not been formally charged with any homicide offence, nor has she been committed to the High Court for trial. 4. The 48-hour Rule 4.1. The Constitution is the paramount law regarding the release from custody of any person accused of committing any crime, with or without bail. The starting point is the 48-hour rule as stipulated in section 42(2)(b) of the Constitution that: “Every person arrested for, or accused of an alleged omission of an offence shall, in addition to the rights which he or she has a detained person, have the right (b) as soon as it is reasonably possible, but not later than 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she must be released.” 4.2.\deally, a person who is suspected of having committed an offence should be investigated first, then arrested and promptly charged of the offence on arrest. However, section 42(2)(b) cited above allows for the charge to be made as soon as it is reasonable but not later than 48 hours. The consequence of failing to charge the arrested person within 48 hours is a Very serious breach of constitutional provisions, and a grave violation of the right of an accused person to personal liberty. By failing to observe and implement section 42(2)(b), the State holds a person in illegal detention, and such a person can legitimately seek the remedy of habeas corpus, SCE The State and Others ex Pp Dr Chilumpha State and Others [2006] MLR 406. in Re Nankwenya and S. 42 (2) of the Constitution of Malawi and the Matter of Habeas Corpus (Misc Criminal - Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC Application No. 62 of 2003 (unreported) the court discussed at length the remedy of habeas corpus and the procedure for claiming the same. 43.\t must be borne in mind that the requirement for the accused person to be brought before a court of law to be formally charged, oF to be informed of reasons for further detention provides for checks and balances in the management of the case; viz, to ensure that the rights of the citizens at large are protected and the right of the accused person is also safeguarded; to ensure that the State acts within the parameters of the law and commence trial timely; and to ensure that the presumption of innocence is not rendered nugatory by lengthy and unchecked custodial periods. In the management of criminal justice, every person who Is accused of an offence, arrested and charged of that offence is to be presumed innocent until proven guilty by a court of law. Delays in formally charging the accused person, OF commencing trial for homicide cases, breach the principle of the presumption of innocence, because, it seems to the accused and the public at large that the accused person is guilty and he ought to be left in custody as a punishment. 44. This Court agrees with the holding of Justice Mwaungulu, as he was then, in Republic v Khasu Misc Criminal Application No. 61 of 2003 (unreported) as regards the 48-hour rule, where he stated that; “The right under section 42(2)(b) of the Constitution should be seen as more than a right. Like most rights, it is an ideal. In my judgment it is also a standard, a measure of the efficiency of our criminal justice system. For separation of powers and removal of arbitrariness in the criminal process, the forty-eight hour right ensures prompt judicial control and checks on executive actions affecting citizen's rights. To the citizen, the forty-eight hour right affords the citizen a prompt opportunity to assert and sample rights the Constitution creates for the citizen and test the reasonableness of the state’s deprival of those rights. The framers set forty-eight hours as the efficiency standard for our criminal justice system fo bring the citizen under judicial surveillance”. 4.5. Further, in the recent case of Frackson and Others MSCA Criminal Appeal No.1 of 2018 (unreported), the Malawi Supreme Court of Appeal had this to say when discussing the right to personal liberty and the role of section 42(2)(b) in safeguarding that right, > Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC “As depicted by section 18 of the Constitution, personal liberty is a high profile right under the constitutional dispensation that exists in this jurisdiction. Thus whenever It Is revoked, even by the State for alleged crime, the inclination of the law is that the circumsiances surrounding such revocation be looked into at the earliest opportunity with an eye towards the possible restoration of the said liberty. Accordingly, as early as within the first 48 hours of any person's arrest for alleged crime, or at the latest as early as by the expiry of that period of time from arrest, section 42(2)(b) of the Constitution sounds alarm bells for State institutions to see to it that the arrested person is brought before an independent and impartial court of law to there be charged or be informed of the reason for his further detention, failing which he shall be released. Further, where on such maiden appearance before the court the said arrestee has ended up being further detained by the court, under Section 42(2)(e) of the Constitution he has, and he retains, the right to be released from detention, with or without bail, unless the interests of justice require otherwise’. 46. In this case the State does not dispute the fact that since January 2018 the Applicant has not been brought before a court of law to be charged or to be informed of the reasons for his further detention. It is the finding of this Court that the State acted in violation of section 42(2)(b) of the Constitution because It did not charge the Applicant with the offence after 48 hours following his arrest and detention. Further, the State failed to bring the Applicant before a court of law in order to inform him of the reasons for his further detention. The State therefore inexcusably violated the Applicant's constitutional right. At the expiry of 48 hours and up to the present time, the Applicant is being held in illegal detention as there is no charge against him. There is no evidence whether or not investigations were carried out, or are still ongoing. Having failed to produce the Applicant before a competent court of law and charging him accordingly or inform him of further detention, the State should have released the Applicant. The release envisioned by the law under section 42(2)(b) is not the release from custody with or without bail, but the release following a discharge from the alleged commission of the offence, because at that point, there is no reason for justifying continued detention. 4.7. Section 42(1)(f) of the Constitution provides that; “Every person who is detained, including every sentenced prisoner, shall have the right - (f) to be released if such detention is unlawful” - Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC in this case, the detention was unlawful. Therefore, by reason of the breach and violation of section 42(2)(b) of the Constitution, it is in the interests of justice that the Applicant be released. 5. The constitutional right to be released from detention with or without bail 5.1. The Applicant argued that he is entitled at law to apply for release from detention with or without bail, if the Court is of the view that his detention was lawful. In accordance with the Constitution, any arrested person has guaranteed rights that cover the process of arrest, trial, access to justice, personal liberty and the right to be tried timely. Failing which, an accused person has a right under the Constitution to be released from detention with or without bail. Section 42(2)(e) of the Constitution provides that Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right - (e) to be released from detention, with or without bail unless the interests of justice require otherwise” 5.2. The Malawi Supreme Court of Appeal held, while emphasising the constitutional right to bail, in the case of The Republic v Fadweck Mvahe, MSCA Criminal Appeal No. 25 of 2005 (unreported) that. « the High Court has power to release on bail a person accused of any offence including murder. We have indicated also that it is common case that the right to bail stipulated in section 42(2)(e) of the Constitution is not an absolute right; it ts subject to the interests of justice. To use the precise words in the Constitution, every person arrested for, or accused of, the commission of an offence shall, in addition to the rights which he has as a detained person, have the right to be released from detention, with or without bail, unless the interests of justice require otherwise. We have further stated that it is also common case that the burden lies on the State to show that it would not be in the interests of justice to grant bail to a murder suspect’. 5 3. In the recent case of Frackson & Others. (supra) the Malawi Supreme Court of Appeal had to released the applicants who had been in custody awaiting trial for close to 2 years. The applicants had been brought before a court of law within 5 days of their arrest and were formally charged and committed to the High Court for trial. That set of facts can be distinguished with the present case, where the Applicant was never brought before any court of law; was never formally charged of - Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC an offence; and is now being held in illegal detention for 24 months. In the absence of an explanation by the State, this Court concludes that the Applicant was never formally charged with a homicide offence. Indeed the Applicant has a right under Section 42(2)(e) of the Constitution to be released from custody with or without bail unless the interests of justice require otherwise. However, in the absence of a formal charge, the Applicant is in illegal detention and as such he ought to be released. 6. Pre Trial Custody Time Limits 6.1. The Applicant has argued that the pre-trial custody time limits have been exceeded and as such the State has violated the right of the Applicant to a fair and speedy trial. This Court notes that under section 161 of the CE&EC the law allows for an accused person to be held in lawful custody in relation to an offence while awaiting the commencement of his trial. However, the law limits the time for such pre-trial custody. Further, according to section 161B of the CP&EC, the custody must be “lawful custody” sanctioned by a court order pending trial. 6.2. In this present case, the detention/custody that the Applicant has undergone was not lawful, as it was never sanctioned by a court of law. The inordinate delay to charge the Applicant cannot be explained away, neither can such delay be condoned. The conduct of the State herein amounts to oppressive, cruel, unfair and unjust treatment of the Applicant, which Is bordering on inhumane and degrading treatment, contrary to section 19(3) of the Constitution. To this end, the Applicant must, in the interests of justice, be discharged and released from custody. 6.3. It must be stated here that delays in bringing cases for formal charges before a competent court of law, or commencing the actual trial have been identified as one of the impediments to the efficient administration of justice, which governance sector reforms must address. Often times, there is a great lament by all stakeholders in the criminal justice sector in regard to inadequate human resources, financial resources and tools of trade to allow the sector to perform and deliver in accordance to the law. Regardless of the reasons cited as leading to the exceeding of pre-trial custody time limits, the State remains in breach of its obligation under the laws of Malawi. Indeed the challenges may be due to lack of diligence in investigating and prosecuting the matter, lost dockets, un-concluded 7 Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC or ongoing investigations, but the criminal justice sector cannot afford to continue with the victimisation of accused persons, OF the disregard of their constitutional rights. There is no excuse for the State to fail to bring the accused person before a court of law which include subordinate courts presided over by a professional magistrate, to charge him or to seek an extension of the pre-trial custody time limits before a competent court of law. 6.4. While this is the reality on the ground seems dire, this Court agrees with the sentiments made by Justice Mwaungulu, as he was then, in the case of Republic v Khasu (supra) that, “State organs cannot, however, avoid constitutional duties and responsibilities under the section because of administrative or financial difficulties. The weight a democratic constitution attaches to the citizen’s rights should, in my judgment, be matched with prioritising and desire to attain efficiency levels that uphold and promote rights” This therefore should compel the courts, when faced with such cases, to discharge the accused person where no formal charges exists, or to grant the accused person bail either on its own motion or on application pursuant to section 118(3) of the CP&EC. In tackling matters on their own motion, the courts are left with the responsibility of balancing the rights of accused persons, the rights of the public at large and the interests of justice. However, this is a precarious position, which sadly is necessitated by the failure of the State to adhere to the laws of the land and the courts must proceed with caution. In the final analysis, and regardless of whatever orders courts make, it remains the primary responsibility of the State to provide resources so that State organs can fulfil their obligations as outlined by the Constitution and the laws of Malawi. 7. Conclusion 7.1. It is clear that the rights of the Applicant, Deborah Shaba, were violated by the State. There is no justification whatsoever for the State’s failure to act within the parameters of the law, and the State has failed to show cause in this hearing why the Applicant cannot be discharged of the offences forthwith. 7.2. This Court finds that there has been a gross violation to the right of liberty in that the Applicant is being held in illegal detention. Further, the Applicant was a “Deborah Shaba v The Republic Miscellaneous Criminal Application No. 83 of 2019 MzHC young adult at the time of arrest and the prolonged illegal detention has exposed her to unnecessary contact with older and hardened prisoners. 7.3. It is ordered that pursuant to section 42(1)(f) of the Constitution and sections 161A and 161B of the CP&EC, the Applicant be discharged forthwith from the alleged but unspecified homicide offence; and that she be released from custody. 7.4. The release is with immediate effect, unless there are other legally and documented reasons for her continued incarceration. It is so ordered. Made in Chambers at MZUZU REGISTRY this 5th day of August 2020 ~~